L. H. Jackson, for respt. Held, That the charge as to the raceway was correct. That defendant having built the closed raceway, as above stated, for his own benefit, could not allow it to fall into dilapidation, and this is so notwithstanding the deed of 1860 from defendant to Smith, providing that each party should build one-half of the race. amount, the defendant might thus throw on him the whole burden of keeping in order a structure used for the defendant's own benefit. And if defendant were worthless plaintiff might recover nothing for his repairs. Judgment for plaintiff on the verdict, with costs. Opinion by Learned, P. J.; Bockes and Boardman, JJ. concur. JURISDICTION. EXAMINA- Y. SUPREME COURT. GENERAL Decided April 7, 1880. The proper mode of raising the question of jurisdiction is not by motion, but by answer. Where the affidavit upon which an order for the examination of defendant as a party before trial is based, shows that the plaintiff has no cause of action against the defendant sought to be examined, such order will be vacated. Also held, that the provision in the deed of 1871, which stipulated that plaintiff might repair the bulk- N. head and charge the expense to defendant, was cumulative and did not bar this action. The easement was for defendant's benefit, and the right of plaintiff to call upon him to pay half the expense of repairing did not relieve defendant if he unjustifiably omitted to keep the structure in good repair. The general rule of servitudes is that there is no obligation on the owner of the servient property to do any act, but only to allow another to do some act or to refrain from doing some act himself. Dig. 8; 1, 15, 1. On general principles it would not be the duty of the plaintiff to construct the raceway or the bulkhead and pipes. And if, by the terms of the deed, the plaintiff is to build half the raceway, or is allowed to repair the pipes at the defendant's expense if they leak, still we must construe these provisions as not taking away the duty of active care of the structure from the defendant. He should have called on plaintiff to join him in the construction and in the repair. A mere stockholder or corporator of a corporation has no right to maintain an action against a person who has wrongfully converted the property of the corporation, without showing a failure or neglect on the part of the corporation, or its board of directors, or proper officers, to take steps to prosecute for the alleged wrong, which are a common injury to all the members of the corporation. Appeal from order denying motion to set aside summons and from order denying motion to vacate order for the examination of the defendant Page. The plaintiffs and defendants are non-residents, and the motion to set aside the summons for want of jurisdiction was based upon the grouud that the cause of action did not arise within this State, nor was the subject of action If, as defendant claims, the plaintiff should himself have made the repairs and sued the defendant for the situated here. No complaint was served in the the summons is affirmed. No costs case, but the affidavit upon which are allowed on this appeal to either the order for the examination of the party. defendant, Page, was obtained contained the following brief state Opinion per curiam. ment in substance of the cause of COMMITMENT FOR CONaction, to-wit: That the defendant TEMPT. TERM. FIRST DEPT. In the matter of the petition of Frances C. Clark. Decided April 7, 1880. company owned certain bonds; that N. Y. SUPREME COURT. GENERAL defendant Page, the president of the company, has disposed of or converted such bonds; and that this action is brought to recover against defendant Page for the damage to the corporation and to the plaintiffs as stockholders therein, arising from the wrongful disposition of the said bonds. H. L. Burnett, for applt. Held, The proper mode for raising the question of jurisdiction is not by motion, but by answer. 14 Hun, 89. Where a commitment issues against a person for contempt of court in disobeying the court's order, the person committed for such contempt does not have the right of the liberties of the jail. And a sheriff who allows the prisoner committed for contempt of court the jail limits, is guilty of contempt of court. Appeal from order of the Special Term, adjudging Bernard Reilly, sheriff, guilty of contempt, and imposing a fine upon him. Held further, that the affidavit A commitment was issued against upon which the order was granted Edwin Clark, in an action brought for the examination of the defend- by his wife for a divorce on the ant Page was not sufficient under ground of adultery, for his failure the Code. It does not set forth to pay $200 counsel fee and $70 alifacts sufficient to show any right of mony. The sheriff, giving a conaction whatever for the purpose struction to the order, and substanstated in the affidavit. tially adjudicating upon its effect, A mere stockholder or corporator admitted the defendant to the liberhas no right to maintain such an ties of the jail. The plaintiff in action without showing a failure or such divorce suit made an applicaneglect on the part of the corpora- tion to punish the sheriff for contion, or its board of directors, or tempt, in admitting the defendant proper officers, to take steps to to the liberties of the jail, which prosecute for the alleged wrongs, motion was granted. which are a common injury to all the members of the corporation. So much of the order therefore as denied the motion to set aside the order for the examination of the defendant Page must be reversed; the order denying motion to set aside A. R. Dyett, for applt. Held, The sheriff had no authority to admit Clark to the liberties of the jail. The commitment under which he was arrested and confined was what is called a Cumming & Hand, for applt. close commitment, founded upon his contempt in not paying the counsel fee and alimony, to which refer- Held, That the judgment in tort ence has been made. A person im- was error. The defendant had been prisoned upon a commitment for con- notified both by the summons and tempt of court is not entitled to the original complaint that he was sued liberties of the jail. The order on contract. Trusting to this he from which the appeal herein was might well have allowed judgment taken was properly made and should to be taken against him. It is said be affirmed. See Mss. opinion that sec. 64, subdiv. 11, permits Daniels, J., at the New York Special amendments "when substantial jusTerm in Allen v. Allen, New York tice will be promoted." But we Daily Register, March 16, 1880. Ordered accordingly. Opinion by Brady, J. JUSTICE'S COURT. MENTS. N. Y. SUPREME COURT. think substantial justice has been violated here. In higher courts when a pleading is amended a copy must be served on the other party AMEND- that he may know what his opponents allegations are. By analogy GENERAL we think that, in justice's court, no amendment changing the nature of the cause of action should be per TERM. THIRD DEPT. Wm. Gilmore, applt., v. Sophronius mitted in the absence of the other Barnett, respt. Decided April, 1880. In Justice's Court, after issue joined, although the other party fails to appear on the adjourned day, no amendment can be allowed changing the nature of the action from con tract to tort. Plaintiff commenced an action against defendant, a non-resident of party after issue joined. Order affirmed, with $10 costs and printing disbt's. Opinion by Learned, P. J.; Boardman, J., concurs, Bockes, J., doubting. ATTACHMENT. GENERAL the county, by short summons, upon N. Y. SUPREME COURT. TERM. FIRST DEPT. Humphrey E. Woodhouse, respt., v. Louis L. Todd, applt. Decided April 7, 1880. on the ground that the defendant had assign- A party procuring an attachment is required to make out a clear prima facie case. Appeal from order denying motion to vacate attachment. Action to the statements appearing by the charge the defendant as a stock- plaintiff's affidavit. holder of a corporation with the debt of the corporation. The ground upon which the attachment was obtained was that the defendant had assigned and dispos Order below reversed, with $10 costs. EVIDENCE. GENERAL TERM. FOURTH DEPT. ed of and secreted his property with N. Y. SUPREME COURT. son or excuse for the plaintiff's failure to procure the affidavit of his informant was given. Jno. T. McGowan, for applt. Butler, Stillman & Hubbard, for respt. The right of cross-examination of a witness, even as to a fact relevant to the issue, mere ly for the purpose of contradicting him by other evidence, if he should deny the fact, is limited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination. Certiorari to Sessions to bring up Held, The affidavit on which the conviction of defendant for a felony attachment was granted was insuffi- in administering poison to wife and cient. The plaintiffs are required to children of one Taft with intent to make out a clear prima facie case, kill. Taft was away from home on and that, so that the judge granting 26th January, 1879. On the eventhe warrant can act judicially upon ing of that day a woman delivered legal proof. In this case the affi- at Taft's house a letter purporting davit as to the material question of to have been written by Taft to his fraud is based altogether upon in- wife, enclosing several small packformation stated to have been given ages purporting to contain potions by one Woodward who has been of medicine, and instructing her to connected with the defendant in administer them to herself and her business. children. The packages contained No affidavit is made by Wood- a deadly poison. The letter was ward, nor is any reason given for not delivered about seven o'clock; the making one, and the plaintiff does evening was dark, and the person not even assert in his affidavit that who delivered the letter could not he believes this statement. be certainly identified. The prosecution insisted, and gave evidence tending to prove, that the accused was the person who delivered the letter; she denied the charge and gave evidence tending to sustain her W. was in no sense an agent of denial. That issue was an importdefendant for the purpose of making ant one in the case. The result is that this attachment was granted altogether upon mere hearsay, so far as it states the alleged fraudulent disposition of the property, and that is not enough. Sarah Cox, mother of accused, was by her testimony, they were not ausworn as a witness for the defense, thorized to show that she had asand gave evidence tending to show serted the fact on previous occasions, that Anna was at home at the time when she was not under oath. The when the letter was delivered at fact to which the satements related, Taft's. On her cross-examination although pertinent to the issue, was by the prosecutor, she was asked if new matter, not touched upon in the she did not know that Anna had direct-examination of the witness, been writing a letter on the day the and the burden of proving it rested letter was delivered, and if Anna on the prosecution. The rule that did not tell her she had been writ- a witness cannot be cross-examined ing, and she answered in the nega- as to any fact which is collateral and tive. She was also asked if sho did irrelevant to the issue, merely for the not tell Mrs. Beman, on the day purpose of contradicting him by that Anna was arrested, that Anna other evidence, if he should deny it,. had been writing a letter on the day thereby to discredit his testimony, the letter was delivered, and she does not by any means imply that a testified that she did not. Mrs. witness may be cross-examined for Beman was called as a witness by such purpose as to every fact which the prosecutor and asked by him if is relevant to the issue. The right of Mrs. Cox, on the occasion of Anna's cross-examination, for such purposes, arrest, said that Anna had been is limited to those matters which writting a letter on the afternoon of tend to contradict, discredit, vary, 26th January. This was objected qualify, or explain testimony given to by the prisoner's counsel on the by witness on direct examination. ground that the inquiry was col- Conviction reversed, and proceedlateral, and raised by the prose-ings remitted, with instructions for cutor, and that the prosecution was a new trial. concluded by the answer of the witness, Mrs. Cox. The court overruled the objection, and defendant's counsel objected. Witness then said she did. A. G. Rice, for defendant. Opinion by Smith, J.; Talcott, P.J. and Hardin, J., concurring. TOWN BONDING ACTS. Y. SUPREME COURT. GENERAL. TERM. FOURTH DEPT. Rochester, Hornellsville and Pine John Rogers et al., applts., v. The Creek R. R. Co. et al., respts. R. C. Titus, Dist. Atty., for People. N. Held, That the trial court erred in receiving the evidence of Mrs. Beman. It was undoubtedly competent for the prosecution to prove that Anna had written a letter on that day, if the fact was so, but when they undertook to prove it by defendant's witness, they made the witness their own for that purpose; and having failed to prove the fact Decided April, 1880. An omission in the petition of taxpayers to state the fact that the corporation to be aided was a railroad company in this State, is remedied by the curative act of 1874, Although, as a general rule, the decision of a |